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Because it was not clear whether a negligent driver was an employee or independent contractor, a lower court’s dismissal of an accident claim was improper, a Georgia Court of Appeals ruled.

In the summer of 2010, Kenneth Boatner was riding his motorcycle with his wife Hattie as a passenger when they were struck by another vehicle in downtown Atlanta causing injury to both. The other vehicle was one of a fleet of cars circulating throughout the city over a three-week period as part of an advertising campaign. It was undisputed that the other vehicle made an unlawful U-turn into oncoming traffic and caused the collision with the Boatners.

The Boatners filed suit against the promotion company that had arranged the mobile ad campaign, Show Media, LLC, on the theory of respondiat superior — that Show Media was vicariously liable for the accident because it was caused by the negligence of its employee driver. Show Media motioned to dismiss the case on the grounds that the driver in question was an independent contractor whose liability could not be imputed to the defendant, and the trial court agreed.

On appeal, the Boatners argued that the lower court erred in dismissing their case because the facts alleged could be construed to show that the driver indeed was an employee of Show Media and not an independent contractor.

The single issue before the appeals court, therefore, was the characterization of the employment status of the negligent driver. As the court stated:

“The test for determining whether an employer is exercising a degree of control over an independent contractor’s work such that the law will deem the independent contractor to be a servant of that employer — thus making the employer vicariously liable for any wrongful acts committed by the contractor — is whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right to merely require certain definite results in conformity with the contract.”

Show Media urged the court to affirm the trial court’s dismissal and pointed to several factors that would support the proposition that the negligent driver was an independent contractor. Show Media argued that because it had engaged a third-party company to hire and supervise the drivers for the advertising campaign, the status of the driver who hit the Boatners was indisputably that of an independent contractor — which would relieve the defendant of all liability.

However, as the appeals court noted, other evidence presented by the Boatners put this conclusion in doubt. Specifically, the court said that “although there is evidence to support the conclusion that the driver was an independent contractor, in that Show Media did not pay her directly, choose her break times, or supervise her activities when she was not driving, there is also evidence to support the conclusion that Show Media maintained sufficient control over the driver that she can be considered an employee, such as instructing her on the time, method, and manner of her daily drive.” As such, the court agreed with the Boatners that the evidence was open to dispute.

The appeals court reversed the lower court’s dismissal and remanded the Boatner’s claim for trial.